Com. v. Kawecki, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW MARK KAWECKI :
:
Appellant : No. 352 WDA 2022
Appeal from the Amended Judgment of Sentence Entered March 14,
2022
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001922-2020
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: April 28, 2023
Appellant, Andrew Mark Kawecki, appeals from the March 14, 2022
amended judgment of sentence entered in the Court of Common Pleas of
Fayette County that imposed a sentence of 2½ to 5 years’ incarceration after
Appellant pleaded nolo contendere to indecent assault - person less than 13
years of age.1 We affirm.
The record demonstrates that Appellant was a Roman Catholic priest
who, between the years 2004 and 2005, had indecent contact with an altar
server who was under 13 years of age, “either by having contact with the
[victim] with [Appellant’s] penis or by forcing the [victim] to have contact with
[Appellant’s] penis.” Trial Court Opinion, 5/20/22, at 2; see also Criminal
Complaint, 8/26/20, at Count 3. On November 18, 2020, Appellant was
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1 18 Pa.C.S.A. § 3126(a)(7).
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charged with the aforementioned offense, as well as involuntary deviate
sexual intercourse – person less than 16 years of age by person 4 or more
years older, indecent assault – person less than 16 years of age, and
corruption of minors.2 Criminal Information, 11/18/20.
On October 25, 2021, Appellant pleaded nolo contender to indecent
assault - person less than 13 years of age. On March 3, 2022, the trial court
sentenced Appellant to 2½ to 5 years’ incarceration followed by 3 years’
probation. Sentencing Order, 3/3/22, at ¶4. Appellant was also ordered to
register with the Pennsylvania State Police as a sexual offender for a period
of 10 years pursuant to Subchapter I of Pennsylvania’s Sexual Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.51 to
9799.75.3 Sentencing Order, 3/3/22, at ¶¶12-20. The trial court nolle
prossed Appellant’s three remaining criminal charges. Id. at 6.
On March 11, 2022, Appellant filed a motion to modify his sentence,
asserting that his sentence was “the maximum sentence permitted by law and
exceeded the standard range and the aggravated range for the crime[.]”
Motion to Modify Sentence, 3/11/22, at ¶6. Appellant further argued, inter
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2 18 Pa.C.S.A. §§ 3123(a)(7), 3126(a)(8), and 6301(a)(1)(i), respectively.
3 Section 9799.55 of SORNA – Subchapter I requires a person convicted of
indecent assault pursuant to 18 Pa.C.S.A. § 3126 to register with the
Pennsylvania State Police for a period of 10 years. 42 Pa.C.S.A.
§ 9799.55(a)(1)(i)(A). Subchapter I of SORNA applies to Appellant’s criminal
conviction because the indecent assault offense was committed on or before
December 20, 2012. 42 Pa.C.S.A. § 9799.52(1).
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alia, that his sentence was unreasonable and excessive under the
circumstances, and the trial court failed to consider all relevant sentencing
criteria and to adequately state its reasons for the sentence on the record.
Id. at ¶¶7-10.
On March 14, 2022, the trial court amended Appellant’s sentence and
sentenced Appellant to 2½ to 5 years’ incarceration.4 Amended Sentencing
Order, 3/14/22, at ¶4. Thus, the trial court, in amending Appellant’s sentence,
eliminated the 3-year period of probation it originally ordered to run
consecutively to Appellant’s term of incarceration. Id. The amended sentence
still required Appellant to register with the Pennsylvania State Police for a
period of 10 years pursuant to Section 9799.55 of SORNA – Subchapter I. Id.
at ¶¶12-20. On March 16, 2022, Appellant filed an amended motion to modify
his sentence to correct “typographical errors” that appeared in his original
motion to modify his sentence. Amended Motion to Modify Sentence, 3/16/22,
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4 The trial court originally imposed a mandatory 3-year period of probation
pursuant to 42 Pa.C.S.A. § 9718.5. N.T., 3/3/22, at 21. Section 9718.5,
however, imposes a mandatory 3-year period of probation for a person
convicted of a sexual offense identified under Section 9799.14(d) of
Subchapter H of SORNA, 42 Pa.C.S.A. §§ 9799.11 to 9799.42, and classified
pursuant to the 3-tier system set forth therein. Because Appellant was
sentenced under Subchapter I of SORNA, as discussed supra, Section 9718.5
was not applicable. Thus, it appears that the trial court, upon reflection,
amended Appellant’s sentence sua sponte by removing the period of probation
and did not amend the sentence for the reasons set forth in Appellant’s motion
to modify his sentence. The caption has been corrected accordingly to reflect
that Appellant appeals from his March 14, 2022 amended judgment of
sentence.
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at ¶1. On May 22, 2022, the trial court denied Appellant’s amended motion
to modify his sentence. Trial Court Order, 5/22/22. This appeal followed.5
Appellant raises the following issue for our review:
Whether the trial court imposed an unreasonable sentence and
one not in accordance with the factors that a sentencing court
must consider in imposing [a] sentence, [particularly]
consideration of the character of Appellant and his rehabilitative
needs, where [the trial court] sentenced Appellant to the
maximum sentence permitted by law?
Appellant’s Brief at 14 (extraneous capitalization omitted).
Appellant’s issue challenges the discretionary aspects of his sentence,
arguing that the trial court abused its discretion when it imposed an
unreasonable sentence and focused only on the seriousness of the crime
without consideration of Appellant’s character and rehabilitative needs. Id.
at 20-40.
It is well-settled that “the right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his[, or her,] appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his[,
or her,] sentence must invoke this Court's jurisdiction by
satisfying a four-part test:
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5 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925. Pa.R.A.P. 1925.
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We conduct a four-part analysis to determine: (1) whether
appellant [] filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's
brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis
whether a particular issue constitutes a substantial question about
the appropriateness of sentence. Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). If an appellant fails to raise a challenge to the discretionary
aspects of a sentence either by presenting a claim to the trial court at the time
of sentencing or in a post-sentence motion, then the appellant’s challenge is
considered waived. Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281(Pa. 2013). A substantial question exists when an appellant presents a
colorable argument that the sentence imposed is either (1) inconsistent with
a specific provision of the Sentencing Code or (2) is “contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d
825 (Pa. 2011). Allegations that the trial court failed to consider a defendant’s
character and background, as well as rehabilitative needs, raise a substantial
question that the sentence was inapposite to the Sentencing Code.
Commonwealth v. Luketic, 162 A.3d 1149, 1162 (Pa. Super. 2017), relying
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on Commonwealth v. Goggins, 748 A.2d 721, 727-728 (Pa. Super. 2000),
appeal denied, 759 A.2d 920 (Pa. 2000); see also Commonwealth v.
Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
Here, the record reflects that Appellant filed a timely notice of appeal
and properly preserved a challenge to the discretionary aspects of his
sentence in his amended motion to modify his sentence. Appellant also
included a Rule 2119(f) statement in his brief. Appellant’s Brief at 8-13. In
his Rule 2119(f) statement, Appellant argues that, in “imposing the maximum
sentence permitted by law[,]” the trial court “failed to consider the character
of Appellant, his rehabilitative needs, or the clearly mitigating factors he
presented such as his advanced age and lack of criminal record.” Id. at 9. In
so arguing, we find that Appellant raises a substantial question regarding the
trial court’s alleged failure to consider his character and rehabilitative needs
before imposing a maximum sentence.6 Luketic, 162 A.3d at 1162; see also
Downing, 990 A.2d at 793. Therefore, we proceed to consider the merits of
Appellant’s discretionary sentencing claim.
Appellant argues that the trial court focused only on the seriousness of
the crime and did not state sufficient reasons on the record for departing from
the sentencing guidelines when it imposed the maximum sentence permitted
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6 Section 1104 of the Crimes Code permits a trial court to sentence a person
to a maximum period of 5 years’ incarceration for a conviction of a
misdemeanor of the first degree. 18 Pa.C.S.A. § 1104(1). In the case sub
judice, Appellant’s conviction of indecent assault - person less than 13 years
of age was a misdemeanor of the first degree. See 18 Pa.C.S.A. § 3126(b)(3).
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by law. Appellant’s Brief at 36. Appellant concedes that the seriousness of
the crime was sufficient to support a sentence of imprisonment and “maybe a
sentence in the aggravated range of the [sentencing] guidelines, but simply
did not justify a sentence that completely disregarded the [sentencing]
guidelines.” Id. Appellant asserts that the trial court failed to consider his
character and rehabilitative needs when determining the length of his term of
incarceration and, in so doing, focused solely on the seriousness of the crime
without considering the criminal defendant. Id. at 40.
It is well-established that “[w]hen imposing a sentence, a [trial] court
must consider the factors set forth in 42 Pa.C.S.A. § 9721(b).”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal
denied, 963 A.2d 467 (Pa. 2008). Section 9721(b) of the Sentencing Code,
in pertinent part, states,
the [trial] court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with
section 9725 (relating to total confinement) and the protection of
the public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the rehabilitative
needs of the defendant. The [trial] court shall also consider any
guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under
section 2155 (relating to publication of guidelines for sentencing,
resentencing and parole, risk assessment instrument and
recommitment ranges following revocation).
42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words
of the Sentencing Code, stating every factor that must be considered under
Section 9721(b). However, the record as a whole must reflect due
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consideration by the [trial] court of the statutory considerations.” Feucht,
955 A.2d at 383 (citations omitted).
The [trial] court may, in an appropriate case, deviate from the
guidelines by fashioning a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community. In doing so, the [trial
court] must state of record the factual basis and specific reasons
which compelled [it] to deviate from the guideline ranges. When
evaluating a claim of this type, it is necessary to remember that
the sentencing guidelines are advisory only.
Commonwealth v. McLaine, 150 A.3d 70, 76-77 (Pa. Super. 2016)
(citations omitted), appeal denied, 168 A.3d 1267 (Pa. 2017); see also
Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(stating that, in deviating from the sentencing guidelines, the trial court must
demonstrate that it understood the sentencing guideline ranges and set forth
on the record, “at least in summary form, the factual basis and specific
reasons which compelled the [trial] court to deviate from the sentencing
range”).
Appellate review of a trial court’s sentencing determination is governed
by Section 9781(c) of the Sentencing Code.
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the
[trial] court applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly unreasonable” based on
the circumstances of the case; and (3) the sentence falls outside
of the guidelines and is “unreasonable.”
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Commonwealth v. Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009), citing
42 Pa.C.S.A. § 9781(c). In reviewing sentencing matters, we are mindful of
our well-settled standard of review.
Sentencing is a matter vested in the sound discretion of the [trial
court], and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion. In this context, an abuse of
discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
[trial] court ignored or misapplied the law, exercised its judgment
for reasons of partiality, prejudice, bias[,] or ill[-]will, or arrived
at a manifestly unreasonable decision.
Garcia-Rivera, 983 A.2d at 780 (citation omitted).
Here, at Appellant’s sentencing hearing, the trial court indicated that it
reviewed a pre-sentence investigation report and understood that the
standard range of sentencing was restorative sanctions to 9 months’
incarceration, with an aggravated range of 9 to 12 months’ incarceration.
N.T., 3/3/22, at 16-17.7 The trial court also stated that it considered all the
factors pursuant to 42 Pa.C.S.A. § 9721(b), including the protection of the
public, the gravity of the offense as it relates to the impact on the life of the
victim and the community, and the rehabilitative needs of [Appellant], in
fashioning its sentence. N.T., 3/3/22, at 17; see also 42 Pa.C.S.A. § 9721(b).
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7 The notes of testimony from Appellant’s March 3, 2022 sentencing hearing
were filed with the trial court on March 15, 2022. For ease of reference, we
identify the notes of testimony by the date of the sentencing hearing.
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The trial court explained its reasons for deviating from the sentencing
guidelines as follows:
Although the plea is no contest[,] for purposes of sentencing[,]
[Appellant] will be punished as if he entered a guilty plea and, of
course, he acknowledged that at the time of the entry of his plea.
[Appellant] pled to the following facts. Between the years 2004
through [2005, Appellant] did have indecent contact with the
victim, who at the time was a boy less than thirteen years of age.
[Appellant] had contact with the victim's penis [] or forced the
victim to have contact with [Appellant’s] penis while at the time
[Appellant] was a Roman Catholic priest and the victim was an
altar server. . . .
[Appellant] is 66 years of age. He has no prior record as he has
never been in trouble previously with the law[,] and the offense
gravity score of this offense is a five[. A] standard sentence is
restorative sanctions to nine months[’ incarceration], an
aggravated range sentence is nine [] to twelve months[’
incarceration]. Of course, the guidelines are advisory only.
Considering the nature and circumstances of this offense [the
trial] court concludes that a guideline sentence is inappropriate in
this case. In fashioning the sentence[, the trial] court []
considered the sentencing factors set forth in [42 Pa.C.S.A.
§ 9721(b)], and [will] go over these for the record. And, of
course, a contemporaneous written statement for the reasons for
the deviation from the guidelines will be provided to the
Pennsylvania Commission on Sentencing. [The trial court]
considered the factors in favor of probation under [42 Pa.C.S.A.
§ 9722]. The first factor in favor of probation is that the criminal
conduct of [Appellant] neither caused nor threatened serious
harm. Quite the contrary in this case. The criminal conduct
caused serious lifelong psychological harm to [the victim] and
[Appellant] should have contemplated this harm. There simply
[are no] factors in this case that weigh in favor of probation. [The
trial] court [] carefully considered the protection of the public. The
nature of the offense is abominable. [Appellant], a Roman
Catholic priest, when he committed these acts between 2004 and
200[5], abused his power and position as the victim's spiritual
leader for his own sexual gratification. [The trial] court [] carefully
considered the gravity of the offense as it relates to the impact on
the life of the victim and on the community. [The victim] called
[Appellant] [F]ather. His parents called him [F]ather. The entire
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Catholic community called him [F]ather. Who could be trusted
more to supervise, teach, and mentor a young boy than the leader
of the boy's own church. [Appellant] breached this trust in the
most heinous way imaginable. At a time when this young man
was vulnerable to the evils of the world. His parents were likely
so proud that he wanted to serve his church as an altar [server].
Who would imagine that a man who held himself out as [F]ather,
a man of God, would victimize their child not once but over years.
[The trial court] considered the victim's [impact] statement. In
[the victim’s] words, his life was drastically altered. He began to
drink at age [] 15 and quickly found that this helped him forget.
He stopped caring about the future that he wanted in [sports]. He
stopped caring about his life. He turned to drugs in his continued
attempts to forget what happened to him. He became addicted
before he was a senior in high school, he barely graduated [high
school], and he failed at his attempt at college. He tried to kill
himself on numerous occasions, spent time in and out of
rehab[ilitation], psychiatric hospitals[,] and jail. He continues to
live with anger, anxiety, depression, [and] hatred[. The trial court
is] pleased to hear that he maintains his sobriety to this day and
[the trial court hopes] he will continue to do so, and he has the
greatest reason in the world right beside him [(referring to the
victim’s infant child)]. But he has been sentenced to a lifetime of
these memories of the horrid acts committed against him when
he was such a young, vulnerable adolescent. The [trial] court []
considered the rehabilitative needs of [Appellant. Appellant’s]
statement, of course, was that he was wrongfully accused and
[the trial court] acknowledge[s] that this plea is no contest[,] and
he has not admitted this happened. He has shown no remorse
whatsoever for his actions, and the [trial] court [] considered that
although this is a [] single count of indecent assault, it is clearly
not a single incident but rather occurred for a number of years.
[The trial court] read in their entirety the 18 letters of support for
[Appellant,] and these letters do provide insight into the
characteristics of [Appellant] that demonstrate how he []
supported people over the years in his position as a Catholic
priest. He is praised for his kindness, generosity, and
compassion[,] and his supporters plead for leniency and mercy
describing how he [] helped so many through personal tragedies
with his strength and guidance. [The trial court] considered each
and every letter of support and [has] no reason whatsoever to
disbelieve any of them, however, all of this support cannot trump
the devastation [Appellant] caused in the life of one young boy at
such a critical time in his life. Unbeknownst to any of these
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supporters, while [Appellant] was guiding so many and serving as
their friend and spiritual advisor[,] he was clandestinely preying
on the innocence of one of his very own altar servers. [The trial
court] considered the arguments [it] heard from [Appellant’s]
counsel today [and] from the Commonwealth. [The trial court
agrees] that [the victim] paid a huge price[,] and he continues to
suffer the effects of what happened to him when he was such a
young and vulnerable boy. This is not just about an adult taking
advantage of a child but[,] rather[,] the spiritual advisor taking
advantage of the young boy who probably looked up to him,
whose family looked up to him and admired him for his role as a
Catholic priest. [The trial court] considered the arguments by
[Appellant’s counsel] today urging [the trial court] to consider
probation and [the trial court] simply cannot find that probation is
appropriate in this case. [The trial] court is departing from the
sentencing guidelines[,] and the explanations and reasons already
outlined serve as departure statements. The basis for total
confinement in this case includes that [Appellant] is in need of
correctional treatment that can be provided most effectively by
his commitment to an institution and [the trial] court believes that
any lesser sentence would depreciate from the very serious nature
of the crimes of [Appellant].
N.T., 3/3/22, at 16-21 (extraneous capitalization omitted). In its May 4, 2022
letter to the Pennsylvania Commission on Sentencing, the trial court set forth
its rationale for deviating from the sentencing guidelines, mirroring the
statements made at the sentencing hearing. Trial Court Letter, 5/4/22.
Based upon a review of the record, the trial court was aware of the
standard and aggravated sentencing ranges. In fashioning Appellant’s
sentence outside those sentencing guidelines, the trial court considered, and
set forth on the record, the Section 9721(b) factors, including Appellant’s
character and his rehabilitative needs. For example, the trial court noted the
supportive remarks contained in the 18 letters it reviewed that characterized
Appellant as kind, generous, and compassionate. The trial court also noted,
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however, that Appellant lived a clandestine life that included the commission
of abusive acts as a priest in the Catholic Church. These actions targeted an
adolescent who trusted and looked to Appellant for spiritual guidance.
Moreover, Appellant’s abusive actions had a severe and detrimental impact
upon the victim’s life. The trial court acknowledged, as part of its rationale
for deviating from the sentencing guidelines, that, when Appellant committed
the abusive acts against the victim, Appellant breached his position of trust as
a spiritual leader and advisor to whom people in the Catholic community
turned to for guidance. In fashioning Appellant’s sentence, the trial court took
into consideration the seriousness of the crime, the character and
rehabilitative needs of the individual who committed the crime, and the
compelling features that distinguished Appellant’s conduct from others who
committed similar offenses.8 While Appellant’s sentence falls outside the
sentencing guidelines, the sentence is not unreasonable for the reasons set
forth by the trial court. Consequently, we do not find the trial court abused
its discretion or erred in sentencing Appellant.
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8 The central thrust of Appellant’s argument on appeal is that the trial court
"sentenced the crime, not the [offender].” Appellant’s Brief at 19, 40.
Appellant reasons that, while the seriousness of a crime is a proper
consideration in imposing sentence, it cannot be the sole consideration. Id.
at 10. Appellant also notes that everyone who violates 18 Pa.C.S.A.
§ 3126(a)(7) abuses a position of trust and often causes irreparable harm.
Id. at 9. Although we recognize some abstract merit in such claims, we cannot
agree that Appellant’s contentions find purchase in this case. In exercising its
considerable discretion in fixing Appellant’s sentence, the trial court
reasonably concluded that even the most cautious parents and victims would
likely relax their vigilance in the presence of a trusted spiritual advisor such
as a Catholic priest. Under such circumstances, we perceive no error.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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